Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
It would appear to be somewhat fanciful to contend that in employing terms in the U.S. Constitution the framers would disregard the specific and express meaning of those precise terms in British common law, the law in the American colonies, and subsequently in all of the states in the United States after independence, in favor of secretly using, without comment or explanation, a contrary, non-existent English translation of a phrase in a French-language treatise on international law. In a state case cited with approval by the U.S. Supreme Court, an extensive legal analysis of the question of natural born citizenship under the law of the United States by Assistant Vice Chancellor Sandford, in New York in 1844, found that the laws in all of the American colonies, and then in all of the states after independence, followed the English common law principles of jus soli, that is, that birth in the territory governed citizenship at birth, regardless of the nationality or citizenship of one’s parents.[1] Sandford found that it would be “inconceivable” that the framers, in drafting the Constitution, would abandon without explicit comment or explanation in the document, the existing law in all of the colonies, and then in all of the states, of who were natural born citizens in favor of an “international” or “natural” law theory of citizenship by “descent” (through one’s father), an argument pressed by one of the litigants relying, in part, on Vattel. Addressing specifically the question of the use of the term “natural born citizen” in the federal Constitution as one of the qualifications for President, Vice Chancellor Sandford found the following:
It is a necessary consequence, from what I have stated that the law which had prevailed on this subject, in all the states, became the governing principle or common law of the United States. Those states were the constituent parts of the United States, and when the union was formed, and further state regulation on the point terminated, it follows, in the absence of a declaration to the contrary, that the principle that prevailed and was the law on such point in all the states, became immediately the governing principle and rule of law thereon in the nation formed by such union…. The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section that defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution shall be eligible to the office of President,” &c. The only standard which then existed, of natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor that by the rule of common law, in force when the constitution was adopted, he is a citizen. Moreover, the absence of any avowal or expression in the constitution of a design to affect the existing law of the country on this subject, is conclusive against the existence of such design. It is inconceivable that the representatives of the thirteen sovereign states, assembled in convention for the purpose of framing a confederation and union for national purposes, should have intended to subvert the long-established rule of law governing their constituents on a question of such great moment to them all, without solemnly providing for the change
- ↑ Lynch v. Clarke, 3 N.Y. Leg. Obs. 236, 242, 244 (1 Sand. ch. 583) (1844). This case was cited with approval by the Supreme Court in United States v. Wong Kim Ark, at 664, 674, and also by the U.S. Court of Appeals in In re Look Tin Sing, 21 F. 905, 909 (Cal. Cir. 1884).
“completely enumerated” in a constitution. 2 Elliot’s Debates at 453–454.
